Sheriff responds to criticism of her immigration decision

Fairfax County Sheriff Stacey Kincaid is responding to what she calls an “inflammatory and profoundly misleading” statement from County Supervisor Pat Herrity (R-Springfield) criticizing her decision to terminate an agreement with ICE, the Immigration Control and Enforcement agency.

Kincaid last month notified ICE that she was canceling a contract under which Fairfax County holds undocumented immigrants in its jail after their scheduled release date if ICE requests it. She said the action opens the county to litigation. Other jurisdictions around the country have taken similar actions.

In a statement earlier this week, Herrity said Kincaid’s decision imperiled the county’s efforts to control gang violence, an assertion Kincaid says appears to have been made “solely for the purpose of needlessly frightening the public.”

Sheriff’s statement

In a statement to FairfaxNews, Kincaid defends her decision. Here are excerpts of her statement:

The Sheriff’s Office will continue to cooperate with ICE, just as we do with other local, state and federal law enforcement authorities. Under the terms of the agreement that we just ended, the Sheriff’s Office had held inmates as long as 48 hours (not counting weekends and holidays) past their court-ordered release time with only an administrative request from ICE. Going forward, we will require that the ICE request be accompanied by a criminal detainer issued by a court.

Interestingly, among Virginia’s 123 county and city sheriffs, 122 do NOT have an IGSA. These jurisdictions have not reported an elevated safety risk from releasing inmates on the date the court said they should be released.

The decision to terminate the agreement was not made in a vacuum. We met with members of the community and attended town hall meetings and other public forums. We consulted with our agency attorney, sheriffs throughout the Commonwealth and the Attorney General’s Office. An ICE administrative detainer is merely a request. This request does NOT create any obligation or even legal authority for law enforcement to keep custody of an inmate who is otherwise eligible for immediate release.

Our decision to end the agreement with ICE does not change or eliminate our commitment to follow relevant Virginia state laws. Those laws require all sheriffs to determine the residency status of individuals arrested and brought to jail. During the booking process, fingerprints are automatically transmitted to a state database to which all local, state and national law enforcement agencies, including ICE, have access.

Virginia law also states that ICE may take custody of an inmate up to five days in advance of that inmate’s scheduled release date. None of this has changed.

At the present time, we are holding in the Fairfax County Adult Detention Center individuals who are, or were, members or associates of MS-13 and who have been charged with serious crimes. In January 2018, our average daily jail population was about 1020; the number of verified MS-13 gang members was 36. We also have inmates who belong to other gangs. Our Intelligence Unit actively investigates every incarcerated gang member and shares crucial information with all appropriate law enforcement agencies.

When any person, regardless of their immigration status or gang affiliation, is convicted and sentenced for serious crimes – such as rape, robbery and murder – they are not released to the street. The Virginia Department of Corrections (DOC) takes custody of these inmates to serve their sentence in a state prison. If the inmate is wanted by ICE, agents will pick up the inmate from the DOC once the full sentence has been served.

The men and women of the Sheriff’s Office are part of the public safety team that ensures Fairfax County is the safest jurisdiction of its size in this country. As your Sheriff, I would never make a decision that would harm our community. We will continue to work with all local, state and federal law enforcement agencies to keep Fairfax County safe and secure. No amount of political demagoguery will ever change that.

Habeas corpus

The debate centers on the Constitution’s protection against unlawful imprisonment. The right of habeas corpus refers to the requirement that a person under arrest must be brought before a judge or into court to secure the person’s release unless lawful grounds are shown for their detention. Local officials who hold individuals after their scheduled release date risk litigation.

Being in the United States illegally is not a crime. It is a civil infraction of federal statutes.

In Florida, officials last month announced a new policy aimed at curbing the threat of lawsuits against sheriffs who hold individuals in jail after they have been released by the courts. ICE Deputy Director Thomas Homan said a new form would be used that transfers custody of inmates to ICE, reducing the jail’s role to simply housing the individual at ICE expense.

The new protocol is being rolled out in 17 Florida counties but civil rights advocates say the new agreement will still leave local sheriffs vulnerable to lawsuits.

“I think they can anticipate more litigation on this subject,” said Alyson Sincavage, a legislative associate for the American Immigration Lawyers Association, according to the Tampa Bay Times